Revisit capital punishment

As the clamour to impose the death penalty on individuals convicted of rape grows louder and shriller – the latest to join the chorus is Tamil Nadu Chief Minister J Jayalalithaa – it is both imperative and urgent to debate the issue with calm reasoning. This is of course easier said than done given the upsurge of volatile emotions across the nation following the heinous rape and death of the 23-year old woman in Delhi. But that must not detract attention from the need to take a hard look at the efficacy of capital punishment both in terms of deterrence and retribution.

The humungous amount of research on criminal justice conducted in democratic countries does not establish one way or the other if the death penalty lowers the incidence of serious crimes. Its deterrence value has been demonstrated in many European countries but not quite in many others. More and more governments however subscribe to the view that capital punishment violates the most basic of human rights viz. the right to life.

Another compelling reason has been advanced to abolish it. This pertains to the fact that the most robust judicial systems in the world can and do err when they impose the death penalty. In the United States, as a recent editorial in The New York Times pointed out, the superior court overturned 18 wrongful convictions of death-row inmates with DNA evidence and exonerated 16 others charged with capital crimes. Such mistakes are galling for no other reason than that they are irreversible. They are tantamount to judicial murder.

Add to this both the long-drawn process and the exorbitant costs involved in carrying out a death sentence. It often takes years before the convict is finally executed. Moreover, the American experience shows that the expenditure on an execution exceeds by far the expenditure on any other form of punishment. For these reasons, the emerging trend in the US is to give a life-term to the convicts without any possibility of parole.

According to The New York Times, the death penalty is indeed in retreat in America both in law and in practice. Five states have abolished it over the past five years. While it remains on the statute books of 33 states, no executions have taken place in 13 of them during this period. The overall number of executions has also declined. So has the number of new sentences. It is down by two-thirds since 2000.

India, many will argue, is not the United States. The question is whether the principles and practice of justice are culture or nation- specific. At the United Nations, the Indian government, along with a handful of other countries, including several democratic ones, took the position that the particular conditions obtaining in a country – notably the threat of terrorism and secessionism – cannot be ignored. It is the sovereign prerogative of a member-state of the UN to decide the matter.

These objections cannot be dismissed out of hand. At the same time, the reasons to reconsider them cannot be pooh-poohed either. Indeed, after the hanging of Ajmal Kasab, Home Minister Sushil Kumar Shinde asked for a nation-wide debate on the death penalty. He did not explicitly spell out the reasons. But his logic, it would appear, is that in a mature democracy, as several authoritative scholars and bodies like Amnesty International insist, there is no place for capital punishment. India, in plain words, cannot remain isolated from the burgeoning sentiment against it across the world.

What bolsters that sentiment is the belief shared more and more widely that the death penalty cannot be construed as an act of retribution either. Rather it smacks of an atavistic urge for revenge as does the call for the castration of convicted rapists. The eye-for-an-eye approach, as the Mahatma so pertinently observed, would end up in a world full of blind people.

The core issue, it would appear, is whether the ‘rarest-of-the-rare case’ principle upheld by the Supreme Court to impose the death penalty is a water-tight one. That issue is far from settled. But the brutal rape and murder of the 23-year old woman offers an opportunity to revisit capital punishment to ensure that the ends of justice are met – regardless of the pressure of public opinion or populist appeals by political parties – in a manner that befits a modern democracy and an ancient civilisation that has been the repository of the most uplifting values and ideals of humankind.